Demonizing Canada's employers as bogeymen intent on persecuting their employees is a favourite tactic of columnists, political parties and governments alike. They employ the rhetoric of a long-extinct class warfare. That the overwhelming majority of Canada's employers are reasonable and law-abiding does not deter their quest. The facts, even the law, never stand in their way.

A notable example was last week's guest column on these pages, written by lawyer David Whitten. He drew a scenario of federal employers firing "en masse" employees who have reached the traditional retirement age of 65. These employers are apparently rushing to take advantage of a supposed "loophole" in federal human rights legislation while they still can, permitting mandatory retirement policies until the end of this year. As he put it "employees aged 65 or older may find themselves out of a job by the end of the year due to a a legislative loophole with no legal recourse," thereby "making a mockery of the decision by legislators to ban mandatory retirement."

This would be a truly worrisome development if it were true. But this opinion is wrong, both legally and factually, and any employer who relied upon it would find itself at the losing end of a court or human rights tribunal decision.

The legal loophole this columnist refers to does not exist. Mandatory retirement in the federal sector was declared unconstitutional by both the Federal Court and the Canadian Human Rights Tribunal as a violation of the Charter of Rights and Freedoms in 2009. Since then, the Canadian Human Rights Commission has accepted complaints of age discrimination on such grounds. Even before that, the Canadian Human Rights Act allowed mandatory retirement only in very specific circumstances - it was never a licence for employers to dismiss employees at age 65.

As a lawyer acting on behalf of employers and with one of the largest labour-employment law practices in Canada, I can state that employers are not rushing to fire older employees. On the contrary, there is a pervasive understanding that the demographic of our workforce is aging and that older employees represent a valuable pool of human resources. The new workforce issue is attracting and retaining older employees, who are seen as reliable and experienced, not retiring them.

Having closely followed and anticipated the gradual dissipation of any legal authority to engage in mandatory retirement, federal employers long ago reoriented their human resources policies. Older employees are now a welcome and vital feature on the Canadian work landscape. And what I see is Canadian employers are committed to treating their employees fairly and without discrimination.

This rhetoric was also evident in the recent NDP leadership campaign. Candidates competed with one another only in their degree of anti-business bashing and support for organized labour. Air Canada and the Harper government were held up as as twin evils trampling on workers' rights. No attention was given to the fact that legislating these employees back to work is not a violation of their legal rights. Back-to-work legislation and referrals to the Canada Industrial Relations Board are hardly illegal.

The more serious issue is the creation of the fool's paradise by delaying the inevitable day of reckoning. Air Canada can no longer afford the swollen wage and pension benefits its employees command. It competes with non-union lower-cost providers in all sectors — domestic, international and charter travel. Will its employees be better off if the airline becomes insolvent and is forced to lay off thousands? My only complaint is with Air Canada for not cogently explaining its case and properly preparing for a strike or lockout.

Finally, government is also guilty of presuming the worst of its employers and legislating accordingly. For example, in Ontario, the McGuinty government has created an Ontario Human Rights Tribunal purportedly to combat discrimination. Under the legislation, every case, however frivolous, goes to a full hearing. Small businesses are required to incur considerable legal costs to defend themselves against often spurious claims. Most end up paying extortionate amounts to employees, because that is often less expensive than attending and prevailing at a hearing. Employees who would never qualify for legal aid are provided free legal representation. But employers, even if they win at tribunal, cannot recover their costs.

It is time to reset our legal and political discourse to reflect Canada's social and economic realities.

Howard Levitt is senior partner of Levitt LLP, (levittllp.ca) employment and labour lawyers. He practises employment law in eight provinces and is author of The Law of Hiring in Canada.

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